USTR Pushing Excessive SOPA-Style Liability In China

from the the-chinese-understand-massive-secondary-liability dept

We've pointed out that the spectacular public uprising that led to the death of SOPA has made it such that Congress is now quite worried about pushing copyright legislation. But... we fully expected there to be attempts to sneak things through in other ways, including through international treaties and agreements. Over at the Disruptive Competition Project site, Matt Schruers has noted that the US Trade Rep (USTR) -- who is responsible for things like ACTA, TPP and other trade agreements -- has been using some of the most controversial language from SOPA in discussions about trade policies with China. Specifically, the USTR press release notes that part of the effort for the US-China Joint Commission on Commerce and Trade (JCCT) will include this whopper:

Building on an existing JCCT commitment to develop a Judicial Interpretation making clear that those who facilitate online infringement will be jointly liable for such infringement, China announced that its Supreme People’s Court will publish a Judicial Interpretation on Internet Intermediary Liability before the end of 2012.

As we had discussed while SOPA was still around, the use of liability for mere facilitation is hugely problematic, and goes way, way, way beyond anything in the law today. Tons of useful technology can facilitate infringement. In fact, historically, nearly every important technological innovation that has helped grow the entertainment industry has first been accused of "facilitating" infringement: the record player, the player piano, the radio, cable tv, the photocopier, the VCR, the DVR, the MP3 player and YouTube... every single one of them was accused of facilitating infringement. That's part of the reason why SOPA was so troubling. But rather than move away from such language, the US is now pushing that same language in its trade agreements with China. As Schruers explains, expanding secondary liability to include "facilitation" has massive problems:

For good cause, existing secondary liability law... does not extend to facilitation – it requires more knowing, culpable conduct, or direct financial benefit. A pirate's utility company arguably facilitates piracy by providing electric power to the pirate – and indeed, benefits from the added electricity consumed. We don't penalize utilities for piracy committed by their customers, however: since its inception, secondary liability has been wisely limited exclude such sweeping application.

The term seems particularly inappropriate in relation to commitments extracted from China regarding Internet policy. Construed broadly, "facilitate" could encapsulate any website or web service that allows users to communicate information freely. Given the ambiguity of the term, China could potentially interpret the word broadly to engage in censorship of its own, not only for IP infringement offenses, but for other activities "illegal" in China as well. If censorship concerns were sufficiently problematic in the U.S., they should be at least as problematic in China.

What Schruer's doesn't even mention, but which seems fairly important, is that China has tons of experience with broad secondary liability clauses and their ability to stifle speech and censor critics. The entire Great Firewall of China is mostly built on this principle of secondary liability, whereby ISPs can get into trouble for "facilitating" negative speech. Chinese officials argue in support of the Great Firewall by saying that it protects the public and they've even argued that it's needed to stop piracy.

So, among other things, by spreading this ridiculous "facilitation" language to a US-China agreement, the USTR is handing that much more ammo to the Chinese government not just to support political oppression, but also to argue that it's doing so because of what the US demanded in its trade agreements. Once again, it looks like, as the USTR carries the water of the legacy entertainment industry, it's undermining the State Department and playing right into China's hands in terms of enabling it to continue to censor the internet and repress political speech. And... of course, once that language shows up within US/China agreements, it won't be long before the USTR starts pushing it elsewhere as well, all in the name of "harmonization." In other words, watch out, the USTR is looking to push parts of SOPA through the backdoor yet again.

Along those lines, USTR boss, Ron Kirk, has announced that he's leaving the position. His leadership has been an absolute, unmitigated disaster. He's responsible for the mess that was ACTA and has kept the TPP negotiations extremely secret. If the Obama administration wants to look forward, not backwards, it needs to nominate a replacement who isn't in the legacy industry players' pockets, but who is dedicated to real transparency and who recognizes that innovation comes from new sources, not from overprotecting obsolete players.

Yes, we need a new open Trade Rep to push artists' rights

The secrecy just hurts plans like ACTA. I see nothing wrong with being upfront about defending the hard work of the American people. If that happens to be movies, photos, and music, well so be it. We do a good job at it and copyright does a reasonable job of spreading the costs equally among all users.

The next TR should push hard to build the open support for these artists' rights.

Re: Yes, we need a new open Trade Rep to push artists' rights

Re: Re: Yes, we need a new open Trade Rep to push artists' rights

Of course not. Chris Dodd would not want the next USTR to be more open. I disagree with bob on a lot of things, and I disagree that the USTR should be pushing copyrights at all, let alone so much, but at least bob's saying he wants it to be more transparent.

Re:

IIRC it is even a tradition to nominate friends of the biggest economic campaign contributers with interests in the field. For a democrat that would seem like Hollywood. I highly doubt that internet companies are sufficiently interested in general american trade. Sure, a little corner of trade is internet and sure, it is a growing part, but mostly it is about "improving" american trade.

Re: Re:

'it needs to nominate a replacement who isn't in the legacy industry players' pockets'

not a hope in Hell! the legacy industries would never allow anyone that was not bias in their favour to head such a body! how would they manage to get all their new laws passed, their old laws updated? Senator bribing alone wont be enough!

I would be careful in dealing with China. What you think you are talking about and what comes to be as a result are rarely the same.

The Great Firewall of China was put in place under the excuse of copyright. That's not really what it's used for.

TR Ron Kirk may get something he doesn't like so well when US companies want to participate in the Chinese market. It's already extremely difficult to do that as China doesn't want goods made elsewhere but rather it wants companies that do get in to bring their technology there but not their products. Either they make the goods in China, benefiting the Chinese economy or China will look more favorably on local manufacturors without foriegn competition in their marketplace.

Often IP and copyright are tied closely as to the reason why foriegn doesn't get a shot. Whether Ron Kirk has realised it yet or not, in China the US is a foriegn competitor.

ROTFLMAO

No, really, this is priceless. Trying to push IP laws in China? The country where patents only means "don't do this thing outside China kthx" then goes "lol they had us pass law to prevent them from doing things, hurr durr". It's not like they enforce them in any way whatsoever internally.
It's the country where subcontractors will produce ten times the merchandise you ordered, to sell by themselves without giving you a cut.
The country where you need a local partner to set up a company, so that when it bankrupts, China keeps someone who knows how to run it.

this would only work in China if China wanted it to. hopefully, they will kick it out. the annoying thing is that they should continue going down the SOPA road at all. doing it in other countries is terrible. it can only be a 'revenge' type of action because they failed in the USA.
as for Kirk, i hope he isn't going to be paid a fortune in compensation for leaving the job and hope he cant get any other position either!

China / sopa

A short term thinking solution to what they see as a road block. I worry that it will come back and bite them and us from unintended consequences. Not just added laws for us by this KY Jelly move to 'back door' legislation. In the long run it will render us less influential. Blocking our innovation for short term profit will kill the golden goose.

The boss!

"If the Obama administration wants to look forward, not backwards, it needs to nominate a replacement who isn't in the legacy industry players' pockets, but who is dedicated to real transparency and who recognizes that innovation comes from new sources, not from overprotecting obsolete players."

Actually, all it would take is for the new head of USTR to remember who's the *beep* boss!

That's the part that always gets me when I read about how they were keeping Congress in the dark about TPP; in what other line of work could you treat your boss like that!?